Browne v Browne [No 2] - [2017] WASC 375

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BROWNE -v- BROWNE [No 2] [2017] WASC 375

CORAM: SMITH AJ

HEARD: 6-10 NOVEMBER 2017

DELIVERED : 21 DECEMBER 2017

FILE NO/S: CIV 2044 of 2017

BETWEEN: STEVEN EDWARD BROWNE
Plaintiff
AND
EDWARD BROWNE
Defendant

Catchwords:

Estoppel - Proprietary estoppel - Farming family - Promises and representations to convey land by will and guarantee funding for farming - Certainty - Terms of assumption - Expectation of inheritance - Encouragement - Detrimental reliance - Defendant resiling from expectation - Where resiling is unconscionable - Equity - Relief - Constructive trust required to satisfy equity arising - Real property - Whether plaintiff was a tenant at sufferance

Legislation:

Family Provision Act 1972 (WA)

Result:

Defendant holds Burracoorong on trust for the plaintiff
Defendant to transfer Burracoorong to the plaintiff on condition plaintiff pays annual sum to defendant (or to defendant's wife if defendant predeceases wife)
Calculation of annual sum subject to review
Counterclaim dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr M N Solomon SC & Ms K A T Pedersen
Defendant: Mr J C Yeldon

Solicitors:

Plaintiff: Hotchkin Hanly Lawyers
Defendant: Dwyer Durack

Case(s) referred to in judgment(s):

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 88 ALJR 552.
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Broadway Pty Ltd v Lewis [2012] WASC 373.
Browne v Browne [2017] WASC 297.
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 90 ALJR 770.
Currie v Currie [2017] WASC 312.
Delaforce v Simpson‑Cook [2010] NSWCA 84; (2010) 78 NSWLR 483.
Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285.
Donis v Donis [2007] VSCA 89; (2007) 19 VR 577.
Evans v Braddock [2015] NSWSC 249.
Evans v Evans [2011] NSWCA 92.
Fazio v Fazio [2010] WASC 263.
Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712.
Gillett v Holt [2000] 2 All ER 289.
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101.
Grundt v The Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641.
Jennings v Rice [2002] EWCA Civ 159.
Jones v Dunkel (1959) 101 CLR 298.
Pascoe v Turner [1979] 2 All ER 945; [1979] 1 WLR 431.
Priestley v Priestley [2017] NSWCA 155.
Ramsden v Dyson (1866) LR 1 HL 129.
SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd [1998] 2 VR 90.
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505.
Sledmore v Dalby (1996) 72 P & CR 196 CA.
Sullivan v Sullivan [2006] NSWCA 312.
The Commonwealth v Verwayen (1990) 170 CLR 394.
Thorner v Major [2009] UKHL 18.
Vinden v Vinden [1982] 1 NSWLR 618.
Waddell v Waddell [2012] NSWCA 214.
Walton v Walton [1994] (Unreported, Court of Appeal of England and Wales, 14 April 1994).
Wantagong Farms Pty Ltd v Bulle [2015] NSWSC 1603.

Table of Contents

Background
Amendment of pleadings
Objections to matters stated in witness statements
Plaintiff's claim
The relief claimed by Steven
The defence and counterclaim
Legal principles
Credit and reliability of evidence given by Mr Browne and Steven
Representations made by Mr Browne prior to 1999
The material matters discussed at the family meetings between members of the Browne family between 1995 and 1999
The terms of the partnership split and representations made by Mr Browne when the partnership was split
Mr Browne's counterclaim
Representations made by Mr Browne to Steven after Steven commenced farming Burracoorong independently in February 1999
Expectation of ongoing support to farm Burracoorong
Access to infrastructure at Yargalain
Mr Browne has resiled from representations made to Steven
Evidence of detrimental reliance by Steven
The measure of relief
ATTACHMENT A

SMITH AJ:

Background

The plaintiff, Steven Browne is the son of the defendant, Edward Browne. Steven is one of four sons of Edward Browne. In this judgment I will refer to Edward Browne as Mr Browne and to each of the sons by their first name.
Mr Browne married Steven's mother, Mae Browne in 1953. Steven was born in 1957, he is the second eldest of eight children and the eldest son. The other sons in order of age are Paul, Michael and Peter.
Mr Browne came from a farming family. In 1962, Mr Browne purchased a farm known as Yargalain. In 1966, Mr Browne inherited from his father the farming property known as Roberts or Swan 3259 and later known as Burracoorong. In about 1968, Mr Browne acquired a farming property described as Army Block 1. In about 1973, he acquired a farming property described as Army Block 2.
In 1974, a partnership was constituted between Mr and Mrs Browne and their two older sons, Steven and Paul which traded as E & M Browne and Sons. The partnership agreement was made by a formal instrument which provided for the partnership to farm over all the lands owned by Mr Browne at a nominal rent.
At the end of 1975, Steven commenced full‑time work in the farming partnership after completing one year of a university course at Murdoch University. He farmed all of the partnership lands, including but not limited to Burracoorong. By the late 1970s, as well as doing manual farm work, Steven played a central role in the management of the farming partnership including doing the accounts.
Steven met his future wife Shelley in 1983 and they married in March 1985. They initially lived in a donga on Yargalain. Steven and Shelley had four children, Dale in 1986, Trent in 1988, Rhys in 1990 and Lauren in 1992.
In 1988, Steven and Shelley began building their family home on Burracoorong. Until that time all habitable accommodation was on Yargalain. Although the reasons for Steven and Shelley building their home on Burracoorong are subject of dispute, it is not in dispute that Mr Browne told Steven and Shelley to build their home on Burracoorong and that Steven and Shelley subsequently did so.
By the mid‑1990s, the farming partnership farmed the following lands owned by the following entities or persons:
(a)Burracoorong owned personally by Mr Browne and comprised 1,375.4 ha (3,398 acres);
(b)Yargalain which included the Army blocks and Yargalain owned personally by Mr Browne and comprised 1,547 ha (3,821 acres);
(c)Yarrawindah owned by Menari Pty Ltd and comprised 752 ha (1,857 acres) (recorded in the books as purchased by the partnership: exhibit A, 26); and
(d)Glenalan owned by Ulinda Pty Ltd and comprised 403 ha (995 acres) (recorded in the books as purchased by the partnership: exhibit A, 28).
Mr and Mrs Browne are the owners of the shareholding in Menari Pty Ltd; as trustee for the Edward Browne Family Trust: exhibit A, 36. From 1993 to 2003, Mr Browne was a 20% shareholder of Ulinda Pty Ltd together with Mrs Browne who held 20%, Steven who held 20%, Peter who held 20% and Paul who held 20%. From 2003, Mr Browne has held 40% of Ulinda Pty Ltd together with Mrs Browne who also holds 40% and Steven holds 20%.
There were various changes to the membership of the partnership over time. By the mid‑1990s the partners in the farming partnership were Mr Browne, Mrs Browne, Steven, Paul and Peter. Michael re‑joined as a partner in 1997. From 1997, until early 1999, Mr Browne, Mrs Browne and all four brothers were partners in the farming partnership.
From the mid‑1990s until at least the beginning of 1999, Mr and Mrs Browne and their four sons discussed arrangements for the future. Those discussions included, but were not limited to:
(a)the retirement of Mr and Mrs Browne and accommodation and financial support for them in their retirement;
(b)the concern that the joint farming enterprise could not support four families;
(c)the structure and ownership of the partnership assets and the farmlands; and
(d)whether the sons would continue to farm together as a partnership or whether they would farm independently by splitting the land for each to farm separately and how that would be done.
By the end of 1997, the partnership had borrowed funds to purchase a retirement home for Mr and Mrs Browne in Sorrento (sometimes referred to as the home in Hillarys).
By early 1999, an agreement was reached between Mr and Mrs Browne and each of the sons to end the partnership. It is not in dispute that it was agreed to split the assets of the partnership between the four sons. Mr Browne remained the owner of the land of the partnership. He and Mrs Browne retired from the partnership and other than the land, gifted their share of the partnership assets to their sons. Steven obtained a larger share in recognition of the length of time he had spent as a partner. Peter and Paul obtained an equal share and Michael received a lesser share.
From 1 February 1999, it is not in dispute that the following arrangements were put in place:
(a)The brothers' respective equities in the former partnership were Steven (36%), Paul (24%), Michael (16%) and Peter (24%).
(b)Each of the sons was to farm independently on the lands allocated to them. Steven was allocated initially all of Burracoorong, except one paddock (3,206 acres or 32% of the land). Paul was allocated Yarrawindah and the Army Blocks (2,649 acres or 26% of the land). Michael was allocated Glenalan and the 521 (part of Yargalain) acres (1,686 acres or 17% of the land). Peter was allocated the remainder of Yargalain and one paddock of Burracoorong (2,509 acres or 25% of the land).
(c)Each of the sons assumed an equal 25% of the debt assumed by the partnership for the purchase of the Sorrento home for Mr and Mrs Browne.
(d)Peter and Steven were to each pay $16,000 per annum to Mr Browne; and Michael and Paul were to each pay $16,000 per annum to Mrs Browne. In December 1999, following advice from accountant Alan Crawford, it was agreed that the amount should be $18,000 per annum (exhibit A, 330). (One of the central issues in dispute is whether the annual amounts paid by each of the sons was an annuity or whether they were repayments for rent for the use of the land. It is, however, agreed that the annual payments were to be made to Mr and Mrs Browne until both of them died).
(e)Each son assumed liability for their share of the partnership debt. At the time of the split of the partnership, the combined value of the assets of the partnership, including sheep, were estimated to be valued at $3,109, 988 and the partnership debt was $750,000.
(f)Steven and Peter were to share the use of the infrastructure on Yargalain that did not exist on Burracoorong.
(g)All four sons continued to use the partnership funding facility for their farming businesses which was maintained by Mr Browne until early 2003.
For the first year after the split Peter farmed one paddock on Burracoorong. It appears Steven complained to his father about this sometime prior to 12 March 1999. At a family meeting on 12 March 1999 attended by Ken Sevenson, a farming consultant, it was agreed that the paddock farmed by Peter be given to Steven: exhibit A, 171. Consequently from the end of 1999, or at least by the beginning of 2000, Steven farmed the whole of Burracoorong independently, being approximately 34% of the land formerly farmed by the partnership.
While specific promises made by Mr Browne to Steven about the transfer of the land at Burracoorong to Steven are in dispute, it is not in dispute that, at least from the time family meetings commenced about discussions to end the farming partnership, Mr Browne said to each of the sons on a number of occasions that the land on which they farmed would be transferred to them by will.
Shortly after the split of the partnership in 1999, Steven commenced works on Burracoorong to improve it. These works have continued until 2017. I accept that this work was undertaken as contemporaneous diary notes and financial records of the work undertaken were kept by Steven. Attachment A to this judgment contains a list of the development work carried out by Steven.
The partnership increased the Rabobank debt to $850,000 on 30 April 1999. This was an increase of $100,000 to enable each of the brothers to farm separately: exhibit A, 201 ‑ 206.
The final accounts for the partnership were issued on 30 June 1999: exhibit A, 236 ‑ 306.
Between 2002 and 2007, Peter and Steven purchased together and shared the use of machinery.
In 2002, Peter and Steven discussed increasing their economy of scale by buying another property that would help them to get ahead. Steven became aware of a farming property nearby that was for sale. The property was the property known as Moganmoganing. Peter and his wife, Catherine and Burracoorong Pty Ltd (the trustee company of the Steven Browne Family Trust, of which Shelley and Steven are shareholders) purchased the property as tenants in common. In total Moganmoganing is about 800 ha. To purchase the property both Steven and Peter borrowed $400,000 each. At that point in time Peter, Paul, Michael and Mr Browne agreed to split the former partnership loan account into four individual accounts because the extra borrowings that Peter and Steven wished to incur to purchase Moganmoganing was too high to ask the other brothers to be ultimately liable for.
On 24 December 2002, Steven and Shelley obtained a separate loan for $650,000 with Burracoorong as security. Of that amount $400,000 was used to purchase Moganmoganing and the remainder was applied to Steven's share of the partnership loan. Steven's share of the $850,000 partnership debt was $270,000: exhibit 26 [111]; exhibit A, 578 ‑ 580. On the same day Mr Browne executed a deed of guarantee securing the loan over Burracoorong: exhibit A, 724.
Until shortly before Christmas 2009, Mr Browne worked for Steven without payment. As a result of an altercation between Steven and Mr Browne, at that time, Mr Browne ceased working for Steven and their relationship became strained.
On 23 March 2010, Steven and Shelley obtained a second loan facility for the amount of $400,000, with Mr Browne making Burracoorong available as security.
In April 2013, Steven considered buying Peter's half share in Moganmoganing. When he discussed the matter with Mr Browne, Mr Browne told him he would agree to increase the loan facility on Burracoorong to enable Steven to buy Peter's half of Moganmoganing, if Steven agreed to increase the annual payments Steven paid from $16,000 to $34,000 per year. Steven was unable to reach an agreement with Peter, the sale did not proceed and Steven did increase the annual payments made to his father.
In the split of the partnership, Paul was given Yarrawindah and the Army Blocks to farm. By 2011, Paul was unable to obtain further finance from Rabobank having incurred a debt ratio of 60%. Mr Browne approached Michael and asked him whether he wished to purchase Yarrawindah. Michael agreed. Yarrawindah was owned by Menari Pty Ltd, as trustee for the Edward Browne Family Trust. The sale led to litigation between Menari and Paul. After the dispute was settled, Mr Browne's solicitors suggested to Mr Browne that they try and prevent a similar dispute by giving his sons leases to sign.
In early August 2013, Steven received a letter from Mr Browne's solicitors, Borrello Legal, attaching a draft lease to sign. The draft lease contained among other conditions, a base rent of $34,000 per annum, payable by biannual instalments of $17,000 each, on 1 July and 1 January during the term of the lease, which was said to commence on 1 July 2013. The draft lease also provided:
(a)for a term of 10 years with an option for a further term of 10 years: cl 2.3 and item 5 of sch 1;
(b)for termination and an obligation to Steven to yield up the premises and return all keys of the premises to Mr Browne upon expiry or termination of the lease: cl 14.1 and cl 14.2;
(c)a reservation to Mr Browne of his right to sell Burracoorong, to any prospective purchaser, or lease it to any prospective new tenant: cl 2.2(b);
(d)that the lease superseded any existing arrangement between Steven and Mr Browne: Special Condition 1, sch 2; and
(e)the house and a large shed erected on the property were stated to be fixtures and were not able to be removed from Burracoorong: Special Condition 5, sch 2 exhibit A, 2385A, 2386 ‑ 2412A.
On 12 August 2013, Steven received a letter dated 2 August 2013, from Borrello Legal, stating among other matters that Mr Browne was concerned that the animosity that had developed between him (Steven) and Peter, was such that Mr Browne considers Steven's relationship with him (Mr Browne) and Peter has deteriorated to such an extent that the exercise of the rights of access to Yargalain had become untenable and can no longer continue. The letter contained a demand that, within 10 calendar days of the date of the letter, Steven was to cease accessing Yargalain and to remove four silos, a sea container and a fuel tank and tools in the bottom shed from Yargalain. The letter also stated that, should Steven refuse or fail to accede to the demands, Mr Browne may exercise his rights at law which may include laying criminal charges of trespass and installing gates or bollards to prevent access along the existing laneway traversing Yargalain: exhibit A, 2384 ‑ 2385.
On 12 November 2013, Mr Browne sent a letter by facsimile to Rabobank informing the bank from this date forthwith he wished to withdraw any further support for Steven and Shelley's indebtedness and required the bank to make arrangements with Steven and Shelley to remove the mortgage over Burracoorong and for Steven and Shelley to secure their indebtedness to the bank over properties held in their names: exhibit A, 2491.
On 14 November 2013, Rabobank sent a letter to Mr Browne advising that effective immediately a restriction had been placed on all accounts in the name of Steven and Shelley and that no transactions could take place, including use of internet banking and cheques: exhibit A, 2494.
It appears that by 20 November 2013, Mr Browne had a change of heart and on that day, on the instructions of Mr Browne, Borrello Legal sent a memorandum by facsimile to Rabobank informing it that it was never Mr Browne's intention that Rabobank should immediately restrict all access to funds to the borrowers and that until further notice Mr Browne wished for Rabobank to withdraw the restrictions and to reinstate the borrowers access. The memorandum also stated that Mr Browne would continue to honour his commitments under the current funding arrangements, inclusive of the mortgage: exhibit A, 2586.
Rabobank required Mr Browne to sign a deed of acknowledgement before it would withdraw the restrictions and reinstate the borrowers' access. Mr Browne's solicitors were informed of this on Friday, 22 November 2013.
On 23 November 2013, Steven and Shelley visited Mr and Mrs Browne at their retirement unit in Hillarys. By this point in time, Steven and Shelley's borrowings secured by Burracoorong amounted to $1,025,000 and the loan facility totalling this amount is due to expire on 2 January 2018.
On Monday, 25 November 2013, Mr Browne signed a deed of acknowledgement to Mr Browne's solicitors and sent it to Rabobank. In an email attaching the deed, Mr Browne's solicitor stated that:
… I confirm my client's wishes that no further extensions of the existing Facility limit be made in favour of the Borrowers, and that if they require further funding over and above the existing Facility limit (which we understand is at $1,025,000.00 that they should secure that additional funding against their own property, in respect of which we understand that they have a half interest in the property known as 'Mogomoganing'. We understand that you will take this into account if you are approached by the Borrowers in that regard (exhibit 1, 2589).

Steven and Shelley's access to funds were then reinstated by Rabobank.
Mr Browne subsequently gave the Army Blocks to Peter to use (this was land formerly allocated to Paul). Peter entered into a lease for Yargalain which provided he pay $26,000 per annum to Mr Browne and $18,000 per annum to Mrs Browne for the Army Blocks. After Steven declined to sign a lease, Mr Browne told Michael not to worry about (signing a lease): exhibit 16 [148].
As a result of Steven being denied access to the infrastructure on Yargalain, Steven constructed a fertiliser shed and a shearing shed and sheep yard complex. Prior to the shearing shed being completed in 2016, Steven made arrangements with an adjoining farmer to use shearing shed facilities on another property.
On or about 1 June 2017, Mr Browne refused to continue to guarantee Steven's borrowings secured on Burracoorong beyond the date of expiry of the current facility (2 January 2018).
On 26 June 2017, Steven filed a writ of summons to commence this action.
By letter dated 4 August 2017 from Borrello Legal, Mr Browne demanded that an increase of rental payments of $34,000 per annum from 1 July 2013 was owing. The letter also made a demand of increased rent from Steven of $61,000 per annum from 1 July 2017 (being $18 an acre). A demand was also made of immediate payment of $64,000 by 11 August 2017, and reserved Mr Browne's right to commence proceedings for payment of arrears and to evict Steven from Burracoorong if Steven did not pay the sum of $64,000 (being the amount the subject of Mr Browne's counterclaim) by 11 August 2017: exhibit A, 3349 ‑ 3350.
On the same day, Mr Browne executed a will in which Steven's entitlement to Burracoorong, via testamentary trust, was conditional upon and subject to:
(a)payment of an increase in rent from 1 July 2013 until 30 June 2016, in the sum of $34,000 per annum;
(b)payment of increased rent from 1 July 2017, in the sum of $61,000 per annum;
(c)continued payment to Mrs Browne during her life of any sum Steven was obliged to pay Mr Browne, had Mr Browne lived, in the same amount at the same time and in the same manner as Steven had been paying Mr Browne, immediately before the date of Mr Browne's death;
(d)payment to the estate of any rental debt deemed owed by Mr Browne; and
(e)payment of $300,000 to each of Steven's sisters, namely Kathryn, Anne, Claire and Carmel (totalling $1.2 million).
Furthermore, the 4 August 2017 will is subject to revocation or alteration by Mr Browne at any time and manifests an express intention to modify its terms so as to penalise his sons if any of them fail to honour and respect Mr Browne's wishes during his lifetime, or cause him any undue hardship or distress: exhibit A, 3322 ‑ 3348.
On 10 August 2017, Mr Browne executed a new will containing the same conditional gift to Steven as the 4 August 2017 will: exhibit 23.

Amendment of pleadings

On 31 October 2017, I made:
(a)an order allowing Steven to file a re‑amended statement of claim by 1 November 2017;
(b)an order allowing Mr Browne to file a re‑amended defence and counterclaim by close of business, 2 November 2017; and
(c)a consequential order allowing Steven to file an amended reply and defence to counterclaim by 2.00 pm, 3 November 2017.
The amendments sought by Mr Browne to the defence and counterclaim were amendments to his counterclaim only. After counsel for the parties conferred, Steven did not oppose the order sought by Mr Browne.
Mr Browne opposed Steven's application to re‑amend the statement of claim and made an application for an adjournment of the trial, if an amendment was allowed to provide for a new [26] that pleaded that, on 12 December 2013 and 20 February 2015, Mr Browne facilitated the development and construction work on Burracoorong by signing development applications submitted to the Shire of Chittering. A submission was made that if this amendment were allowed, the trial commencing 6 November 2017 should be adjourned to allow Mr Browne to obtain expert evidence to support a claim made by him that the signatures on the development applications, that appeared to be Mr Browne's, were in fact forgeries.
I was not satisfied that the amendment sought to [26] of the amended statement of claim took Mr Browne by surprise as affidavit evidence was before me that Mr Browne had notice of the facts, the subject of the amendments since 5 October 2017, and they had been raised specifically in particulars provided to Mr Browne's solicitors by Steven's solicitors on 11 October 2017. Consequently I was of the view that any prejudice that was raised in relation to the late notice of this proposed amendment was of Mr Browne's own making. I also took into account that at 31 October 2017, no steps had been taken to ascertain whether it would be possible to adduce expert evidence about handwriting on the disputed documents in the trial of this matter.
An amendment to [20(a)] of the amended statement of claim was opposed on grounds the matters pleaded constituted a new case by raising Steven's entitlements as a partner with his father and brothers in farming all of the land owned by Mr Browne, Menari and Ulinda. After hearing from counsel, an amendment to this paragraph was made which could not be said to be controversial. An uncontroversial amendment was also made to [20(h)] of the amended statement of claim.
Other amendments to the amended statement of claim were opposed on grounds that the new factual allegations were raised after the evidence was filed and the case was prepared.
After the amendments to [20(a)] and [20(h)] were made I allowed all of the amendments sought by Steven to the amended statement of claim. I was of the opinion that the amendments sought to be pleaded should not take the defendant by surprise. In particular, with the exception of proposed [34] and [35], I was of the opinion that nothing new was pleaded and that the amendments sought were simply a refinement of Steven's case.
The amendments sought to [34] and [35] of the amended statement of claim, did however raise a new discreet issue. However, the issue raised is about the terms of a will executed by Mr Browne on 4 August 2017. As it was clear that the disposition of these amendments would turn only on the express terms of the document pleaded to be a will and did not raise any issue going to the circumstances of the making of the will, I allowed those amendments to the amended statement of claim.

Objections to matters stated in witness statements

At the commencement of the trial, counsel for Mr Browne, provided to the court a schedule containing a substantial number of objections to more than 70 paragraphs of the plaintiff's witness statements. Senior counsel for Steven provided a much smaller list of objections to material contained within the witness statements filed on behalf of Mr Browne.
After hearing from counsel, I formed the opinion that it was not necessary to deal with each one of the objections, one by one. Having read each one of the witness statements it appeared that there was a substantial amount of irrelevant material in the witness statements filed not only on behalf of Steven but also in the witness statements filed on behalf of Mr Browne. Thus, I formed the opinion that it would not be necessary to deal with many of the objections as it would not be necessary for me to have regard to irrelevant matters contained within those paragraphs the subject of objections.
However, where objections have been made to the admissibility of evidence that are relevant to the disposition of the issues to be determined in this matter, I have made rulings as to whether those objections should be upheld and made findings as to whether that evidence is admissible.

Plaintiff's claim

Steven's claim is, that at various times between 1975 and 1999, Mr Browne promised him that he would gift Burracoorong to him before, or upon, Mr Browne's death and Mr Browne thereby induced an assumption by Steven to that effect.
By 1999, Steven claims Mr Browne had induced an assumption by Steven that:
(a)Mr Browne would gift the land that Steven farmed, namely Burracoorong to Steven before, or upon, Mr Browne's death;
(b)Steven could farm Burracoorong, henceforth independently, at his own expense; and
(c)Mr Browne would support Steven's farming by allowing access to infrastructure on Yargalain, and by facilitating Steven's borrowing by permitting the use of the partnership's existing funding facility.
Steven claims Mr Browne subsequently repeated the promise that he would gift Burracoorong to Steven before, or upon, Mr Browne's death, on a number of occasions between 2001 and 2013.
Until 20 February 2015, Mr Browne facilitated Steven's improvements to Burracoorong. Until 2013, Mr Browne made Burracoorong available to Steven (and Shelley) as security for borrowings for their farming operations.
In reliance upon the promises made to Steven, Steven (and Shelley):
(a)undertook extensive development and infrastructure work on Burracoorong;
(b)assumed and continued to service Steven's part of the partnership debt:
(c)continued to live on, devote their resources and farm Burracoorong independently at their own expense;
(d)incurred liability for loans;
(e)made annual payments to Mr Browne;
(f)have not invested money used in support of the farming operations on Burracoorong and Moganmoganing elsewhere;
(g)have not pursued a livelihood away from Burracoorong;
(h)encouraged and facilitated their son Dale to devote his career, efforts and resources to the farm operations at Burracoorong; and
(i)organised all of their affairs on the basis that the security provided by Mr Browne would be available to them, which they would not otherwise have done.
Steven claims that Mr Browne has resiled from the promises:
(a)in about August 2013, Mr Browne prevented Steven from having access to the infrastructure on Yargalain and demanded Steven sign a lease for Burracoorong;
(b)in or about November 2013, Mr Browne sought to withdraw his guarantee for Steven's borrowing because Steven would not sign the proposed lease and informed Rabobank he would not agree to any extension of borrowings being secured against Burracoorong;
(c)from on or about 1 June 2017, Mr Browne refused to acknowledge his promise to Steven that he would give Burracoorong to Steven and refused to continue to guarantee Steven's borrowings;
(d)on or about 4 August 2017, Mr Browne demanded an increased annuity, (or rent) from Steven of $61,000 per year, commencing on 1 July 2017 and reserved his right to evict Steven from Burracoorong if Steven did not pay the sum of $64,000 by 11 August 2017; and
(e)on 4 August 2017, Mr Browne executed a will in which the conditions that attach to Steven's entitlement to Burracoorong, via testamentary trust, is inconsistent with the promise and is illusory because it is expressly irrevocable and requires the payment of an amount Steven is unable to pay.
Steven claims his reliance on the induced assumptions is to his detriment. He claims if Mr Browne is permitted to resile from the matters giving rise to the promises this will cause detriment to him (together with Shelley) so that he will:
(a)lose his entire life's investment and effort in Burracoorong;
(b)lose his ability to earn an income;
(c)remain liable to the bank for the funds borrowed and previously secured by Burracoorong; and
(d)have no capacity to repay the bank and thereafter continue to support himself and his family.

The relief claimed by Steven

Steven articulates the relief he seeks as follows:
A.A declaration that the defendant holds his legal interest in Burracoorong on trust for the plaintiff.
B.An order that the defendant do forthwith transfer his interest in Burracoorong free of encumbrances (other than the encumbrances that secure Steven and Shelley's loans) to Steven.
C.Alternatively, orders that:
(a)Burracoorong is to be transferred to the plaintiff on the defendant's death; and
(b)the defendant continue to make Burracoorong available to secure the plaintiff's loan so as to allow Steven to continue farming Burracoorong.
D.Alternatively, an order that the defendant pay compensation or damages to the plaintiff.
E.An order that the defendant pay the plaintiff's costs of the proceedings.
F.Such other relief as the Court sees fit.
On 21 September 2017, I made an order that the relief claimed in [D] be tried separately on grounds that if the relief pleaded in [A], [B] or [C] succeeds or if Steven fails in establishing his claim that he has suffered a detriment in reliance on the promises made to him by Mr Browne then the claim in [D] will fall away: Browne v Browne [2017] WASC 297 [38].

The defence and counterclaim

Mr Browne denies the promises alleged to have been made before the split of the family farming partnership, and does not recall having a will prior to 2005.
Mr Browne says the asserted promise is vague and that in any event, the promise was executory and no estoppel will lie in aid of an executory promise.
Mr Browne's answer to Steven's case is that it was a term of the agreement reached with Steven and the brothers in 1999:
(a)that each of the brothers would use the land allocated to them;
(b)Mr Browne:
(i)retained ownership of Mr Browne's land absolutely;
(ii)retained control of the land owned by Ulinda and Menari absolutely;
(iii)was entitled to vary the allocation of the land at his absolute discretion;
(c)for as long as they used the land the brothers would each pay an amount to Mr Browne and Mrs Browne until both of them died. The amount was to be determined by Mr Browne and Mrs Browne at their absolute discretion, relative to their needs and obligations, and $16,000 per annum were initial amounts;
(d)Mr Browne agreed to continue to guarantee the existing debts of the partnership for the term of the guarantee and could, at his absolute discretion, agree to guarantee further loans;
(e)Steven was given the right of access across Yargalain provided he equally bore the costs of electricity and maintenance during shearing season with Peter; and
(f)provided the brothers individually complied with their obligations pursuant to the agreement, both Mr Browne and Mrs Browne would make a will which provided that, upon the death of both of them such of the brothers who had complied with the agreement would be given the land of which they had use.
Pursuant to the absolute discretion clause, Mr Browne varied the allocation of land to be used by Steven and the other brothers in or about 2000 and the land to be used by the brothers (other than Steven) in 2002, 2003, 2011, 2012, 2014 and 2015.
Mr Browne concedes that, in or about August 2013, he instructed his solicitors to inform Steven that Steven's access to Yargalain was refused and Mr Browne locked the gates to Yargalain thus, excluding Steven from the right of access, on grounds of Steven's conduct to Mr Browne and Peter.
Mr Browne also claims by the terms of the 1999 agreement, he was obliged to allow the properties to be used as security until the partnership's debts were paid, and thereafter was entitled to consider whether he would allow the use of any property as security for his sons' loans in his absolute discretion. Consequently, Mr Browne claims there is no basis for a court to compel him to pledge his property as security for any further extension to Steven's loan in the absence of a promise to that effect.
Mr Browne says that Steven ought to have known that he was not likely to further guarantee Steven's loans or pledge Burracoorong as security for Steven's loans.
Mr Browne claims that reserving rights to evict Steven from Burracoorong is not evidence that he is resiling from the promise made to Steven, as his 2017 will gifts to Steven Burracoorong by way of a testamentary trust subject to Mrs Browne's entitlement.
Mr Browne claims $34,000 per annum and $61,000 per annum commencing 1 July 2017 is more than a reasonable and fair sum of rent for Steven's use and occupation at Burracoorong
Mr Browne denies Steven has suffered a detriment and says that Steven has the capacity as director of Burracoorong Pty Ltd to sell the Steven Browne Family Trust share of Moganmoganing and pay all or most of his and Shelley's debts to the bank.
Further, Mr Browne denies that Steven is entitled to the relief sought and says that if in the event Steven is entitled to any relief at all, the relief should not be disproportionate to his detrimental reliance given that:
(a)Steven had the use of Burracoorong to derive income and profits for himself and his family members at a rent of $13 per hectare from 1999;
(b)$13 per hectare is not a reasonable market rate of rent in 1999 or 2017, or in any of the years between those years; and this rate has been of substantial assistance to Steven and his family for over 18 years of occupation;
(c)Steven has substantially benefited from the terms of the 1999 agreement by living in the house on Burracoorong rent free and farming Burracoorong at the rate per acre he is paying to Mr Browne;
(d)Steven utilised the free labour of Mr Browne between 1999 and 2010 which was of substantial assistance to him and his family. During this period, Mr Browne carted all of Steven's fertiliser, wool and grain for no charge.
Mr Browne claims that the value of Burracoorong as a farming property is at least $6,825,000, and potentially more than that.
The counterclaim by Mr Browne is put in the alternative.
The first is a claim based upon an alleged condition of the 1999 agreement which is characterised by Mr Browne as an income discretion clause. In accordance with the alleged term, Mr Browne pleads increased payments of $34,000 per annum, retrospectively from 1 July 2013.
Mr Browne also pleads that on or about 4 July 2017, he demanded that Steven increase the annual amount from 1 July 2017 to $61,000 per year. Steven has failed to pay this sum. Mr Browne therefore claims that Steven owes him the sum of $61,000 rent for the 2017/2018 financial year.
In the alternative, Mr Browne puts forward a counterclaim on the basis of a term said to be implied by law requiring Steven to pay a reasonable sum for use and occupation of the land at Burracoorong. The particulars plead it was an implied term of the 1999 agreement that Steven would pay Mr Browne a reasonable rent for Steven's use and occupation of Burracoorong, when Mr Browne requested Steven to do so. In the defendant's reply to counterclaim and rejoinder it is pleaded a landlord and tenant relationship arises as a tenancy at sufferance.
A reasonable sum is claimed to be the rent paid by lease holding farmers in the vicinity of Burracoorong, that is, market rent. Mr Browne claims market rent should be assessed at same rate of payment the same rate as Steven and Shelley have paid the Steven Browne Family Trust for the past six years for the use of 406 ha of Moganmoganing.
Mr Browne also pleads that on or about 26 June 2017, Steven lodged a caveat (N656535C) over the whole of the land comprising Burracoorong. The caveat claimed an interest as beneficiary of a trust of the fee simple arising from Mr Browne's promise to transfer or bequeath Burracoorong to Steven. On the basis that no such promise was made by Mr Browne to Steven, or because Mr Browne lives, Mr Browne claims that the caveat should lapse upon the making of the court's order.

Legal principles

Steven's claim is in proprietary estoppel.
There are two forms of proprietary estoppel. The first form originates from Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285. In that type of case equity affords relief on detrimental reliance created by encouragement by the owner of land as to the future acquisition of property: Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101; Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505; Priestley v Priestley [2017] NSWCA 155 [7] (Macfarlan JA).

The second form originates from Ramsden v Dyson (1866) LR 1 HL 129. It is proprietary estoppel by standing by, or acquiescence.
Steven's case relies upon estoppel by encouragement.
As Ball J explained recently, in Wantagong Farms Pty Ltd v Bulle [2015] NSWSC 1603, the equitable doctrine of estoppel by encouragement includes the following elements [62]:
(a)the party alleged to be estopped has encouraged or induced an expectation of a future transfer of an interest in property;
(b)there has been reliance on that expectation in the form of a change of position by the party seeking to establish the estoppel; and
(c)there has been (or will be) an identifiable detriment to the recipient of the assurance as a result of the change of position, where the expectation is not fulfilled.
However, these elements often overlap to a significant extent. As Robert Walker LJ noted in Gillett v Holt [2001] Ch 210 at 225, 'the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments'. The various aspects of the doctrine are ultimately concerned with the overarching question whether it would be unconscionable in all the circumstances of the particular case to permit a departure from the encouraged expectation: ibid. See also Delaforce v Simpson-Cook at [3] per Allsop P.
The existence of an agreement or even a promise is not at the heart of the doctrine of proprietary estoppel. Rather, the doctrine is directed to preventing an unfair departure from an expectation induced or encouraged by a person which has been relied upon by another, and will cause detriment to that other person if the expectation is not fulfilled.
In an estoppel that arises by encouragement, where a party has expressly or impliedly promised to grant an interest to another, the subjective state of mind of the person making the promise is irrelevant if the other person acted reasonably in relying on the promise: Priestley [13] (Macfarlan JA).
The first element summarised in Wantagong Farms by Ball J requires that the promise, assurance or representation by the party who is to be estopped must be sufficiently clear even though it may be lacking in detail: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 90 ALJR 770 [36] (French CJ, Kiefel & Bell JJ), [149] (Keane J). However, the representation or assurance need not be at the level of certainty or specificity that would be required to establish a contractual obligation: Wantagong Farms [63]; Sullivan v Sullivan [2006] NSWCA 312 [84] ‑ [85] (Hodgson JA); Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 [80] (Brooking JA).
A representation may be subject to conditions that arise from the circumstances of a representation.
In Waddell v Waddell [2012] NSWCA 214, Campbell JA pointed out that Thorner v Major [2009] UKHL 18; Walton v Walton [1994] (Unreported, Court of Appeal of England and Wales, 14 April 1994), Delaforce v Simpson‑Cook [2010] NSWCA 84; (2010) 78 NSWLR 483 [81] and Evans v Evans [2011] NSWCA 92 [108] establish that [54]:
… equitable estoppel [by contrast with contract] … does not look forward into the future [it] looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept.
In relation to the second element considered by Ball J in Wantagong Farms, reliance by a change of position, requires a factual inquiry. In Sidhu, French CJ, Kiefel, Bell and Keane JJ importantly pointed out that [58]:
In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor’s responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that:
'It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.' (footnotes omitted)
As to the third element, the detriment or harm required to ground an estoppel can be any material disadvantage: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 88 ALJR 552 [150]. Such material disadvantage must be substantial, although it need not be quantifiable in the same way as an order of damages: The Commonwealth v Verwayen (1990) 170 CLR 394, 448 (Deane J), 461 ‑ 462 (Dawson J). In Gillett v Holt [2000] 2 All ER 289, Robert Walker LJ explained that (308):
The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.
There are some helpful observations about the requirement for detriment in the judgment of Slade LJ in Jones v Watkins [1987] CA Transcript 1200. There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded ‑ that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved.
Detriment is not the loss flowing from the non‑fulfilment of the promise. The detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped: Delaforce [41] ‑ [42] (Handley AJA); Grundt v The Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641, 674 ‑ 675.
An assessment of detriment must be approached from the position of whether departure from the promise is unconscionable. In Donis v Donis [2007] VSCA 89; (2007) 19 VR 577, Nettle JA explained that [20]:
The prima facie position will yield to individual circumstances. Principle and authority compel the view that where a plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant's equity may be better satisfied in another and possibly more limited way. Thus, as was also said in Giumelli v Giumelli, before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others. But that does not mean that the court is required to be 'constitutionally parsimonious' or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. The object of the exercise is to do equity and for that purpose 'detriment' is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances. (footnotes omitted)
Proof of detrimental reliance at all times lies on the claimant to prove that he or she had been induced to rely upon the promises made by the person who is said to be estopped: Sidhu.
The test is not whether the claimant would have acted differently if the person said to be estopped had not encouraged his assumption and belief but whether he or she was influenced, in a significant or material way, such that it was a contributing cause to his or her conduct or made a difference to his or her action or inaction so that it would be unconscionable for the promisor or representor thereafter to enforce his or her strict legal rights: Priestley [136] ‑ [138] (Emmett AJA).
Whilst it is correct to say that the measure of relief should not be out of proportion to detriment, it appears the starting point may not be the imposition of a remedy to reflect the 'minimum relief necessary to do justice between the parties'. In Sidhu, Gageler J observed in relation in cases decided before Giumelli that [85]:
There may be cases where '[i]t would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption'; but in the circumstances of the present case, as in Giumelli v Giumelli, justice between the parties will not be done by a remedy the value of which falls short of holding the appellant to his promises. While it is true to say that 'the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct', where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary in this sense is usually that which reflects the value of the promise. (footnotes omitted)
In Delaforce, Handley AJA remarked that the minimum equity principle since Giumelli is probably not the law in this country: [59]: see also Sullivan [20] ‑ [23] (Handley JA).
In Sidhu, French CJ, Kiefel, Bell and Keane JJ remarked that [84]:
If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite:
'[H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature … beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.
Where the expectation is undefined or is uncertain, equity must fashion its relief from the circumstances, but where the expectation was defined with certainty by the party estopped that is where the court must start: Delaforce [92] (Handley AJA).
Equity is flexible and can recognise the need for a clean break. Importantly, equity must do justice to the defendant and must take into account the impact of its orders on third parties or any hardship or injustice they would suffer: Delaforce [59], [60] (Handley AJA); Pascoe v Turner [1979] 2 All ER 945; [1979] 1 WLR 431; Giumelli (113 ‑ 114, 125); Gillett (312); Jennings v Rice [2002] EWCA Civ 159.
Relief may be refused or reduced if the claimant's equity has been diminished by later events: Sledmore v Dalby (1996) 72 P & CR 196 CA. Subsequent events may also enlarge the claimant's equity: Sullivan [25] (Handley JA).
Other matters that must be considered when determining an appropriate remedy to prevent the unconscionable defeat of the induced expectation were set out by Ball J in Wantagong Farms as follows [72] ‑ [73]:
In determining whether a grant of equitable relief is appropriate, it is open to the court to consider circumstances that eventuated after the encouragement or assurance: Delaforce v Simpson-Cook at [61] per Handley AJA. As Macfarlan JA explained in Milling v Hardie [2014] NSWCA 163 at [55], '[t]he court may […] take account of a supervening circumstance, such as a defendant's unexpected financial reverse, which might justify departure from a promise that has given rise to a proprietary estoppel'. It was also said in Duic v Duic [2013] NSWCA 42 at [32] and Milling v Hardie [2014] NSWCA 163 at [55] that the detriment of the party seeking to establish the estoppel could be 'amortised' over time as a result of some related benefit accruing to that party.
Finally, it was noted by Allsop P in Delaforce v Simpson-Cook that in considering the appropriate form of relief, '[p]roportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration' (at [4]). However, his Honour stressed that proportionality is not to be 'transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief', as to do so would be to 'elevate one consideration above others' (at [4]). See also Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281 at [142] per Bathurst CJ.
The fact that a family relationship has broken down since a promise was made is not ordinarily regarded as a reason to deny a claimant his or her prima facie entitlement to have the promise made good: Donis [45] (Nettle JA).
It is argued on behalf of Mr Browne that Steven's case that Mr Browne would gift Burracoorong to Steven before or upon Mr Browne's death is executory and thus unenforceable. As I understand the argument, it is put that the time for Mr Browne's performance of the promises to gift Burracoorong before Mr Browne's death, is not only ambiguous, but that the death of Mr Browne has not yet happened.
It is also argued that as a matter of practicalities, none of the putative beneficiaries to Mr Browne's estate are present in these proceedings, notwithstanding that upon Mr Browne's death they would have rights under Mr Browne's will to his estate subject to the operation of s 6(1) of the Family Provision Act 1972 (WA).
Consequently, an argument put on behalf of Mr Browne that the alleged promises would not be enforceable upon Mr Browne's death as equity will not curtail the operation of the statute. As counsel for Steven point out, this submission is not supported by the principles of equitable estoppel, (or made out on the evidence which I will deal with further in this judgment).
It is uncontroversial that the enforcement of irrevocable testamentary dispositions may be contingent upon the provision for eligible dependants: Delaforce [31] ‑ [35] (Handley AJA). It is also plain that the courts will not consider a hypothetical contingency which has not occurred. Therefore, the potential operation of the provisions of the Family Provision Act to the disposition of property by will is a question to be determined upon relevant application in due course. But it does not bar a claim in equity arising in the interim. Even where property is included within a will, its owner may nevertheless deal with the property during their lifetime. This might include a testator selling property for any number of reasons, or conducting themselves in such a way as to give rise to an equitable interest in the property to be held by another.
Further, an assumption that land would be received by will, (rather than during the promisor's lifetime) is incapable of giving rise to a proprietary estoppel because a person's will is inherently revocable, is not at law correct. This point was made clear very recently by Le Miere J in Currie v Currie [2017] WASC 312, when his Honour said at [116]:
An assumption that land will be received by will is capable of giving rise to a proprietary estoppel. In Flinn v Flinn [1999] 3 VR 712 Brooking JA, with whom Charles and Batt JJA agreed, found that promises by the defendant to leave by will an interest in a farm to the plaintiffs gave rise to a proprietary estoppel. The court held that the promises were and were intended to be, and were reasonably understood and acted upon by the promisees as, promises to make a gift by will taking effect on death. They were not promises to make a revokable testamentary instrument.
Thus, the issue to be determined by the court is whether the testamentary promise or promises are capable of being construed as demonstrating an intention that can be revoked. If the promises are taken to evince an intention not to revoke, then equity may intervene. In Wantagong Farms, Ball J said [64]:
As was explained by Robert Walker LJ in Gillett v Holt at 227–8, 'the inherent revocability of testamentary dispositions' is not necessarily a bar to finding that statements of testamentary intention are capable of serving as a basis for a proprietary estoppel as '[e]ven when the promise or assurance is in terms linked to the making of a will […] the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise' (cited by Handley AJA in Delaforce v Simpson-Cook at [36]). His Lordship acknowledged that 'in the generality of cases' it would not be reasonable to rely on a living person's representations as to their testamentary intentions. However, in that case his Lordship found that the expectation was reasonable because the 'assurances were repeated over a long period, usually before the assembled company on special family occasions, and some of them […] were completely unambiguous' (at 228). In Flinn v Flinn, Brookings JA made a distinction (at [75]) between 'a promise to leave property by will' as sufficient to found an estoppel on the one hand and an insufficient 'intimation of intention to make a will coupled with a disclaimer of an intention not to revoke it'. In Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281, Young CJ in Eq, following Gillett v Holt and Flinn v Flinn, stated that, in cases involving a representation as to testamentary intention, what is required are 'circumstances that the promise was given and understood to be irrevocable. That may be shown by circumstances short of an explicit statement that the promise is irrevocable.' (at [58]) The question is whether the person incurring the detriment understood that the maker of the will may change his or her mind, not whether they would do so: ibid, at [51].

Credit and reliability of evidence given by Mr Browne and Steven

As counsel for Steven points out, the most reliable indicator of people's reasonable expectations at the time, is not their recollection of what was said decades ago. Rather, the more reliable indicator of people's expectations is what they did and how they conducted themselves.
Counsel for both parties also relevantly point out that where the events relevant to a matter occur long before the litigation, the court usually prefers to rely upon contemporaneous documents to provide valuable and more revealing information than flawed attempts at recollection by witnesses: Evans v Braddock [2015] NSWSC 249 [74], (Hallen J) citing Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 [1247] (Jagot J).
In this matter there has been conflict not only between Steven and Mr Browne but has also been conflict between Steven and Peter, and Peter and Michael. Further, a dispute arose between Paul and Mr Browne which led to litigation between them which resulted in a deed of settlement arising out of the use of land allocated to Paul. As a result, Paul no longer farms land owned by his father and now works as a psychologist.

It is clear to me in these proceedings that Steven and his father and brothers are now divided. None of the Browne family members who gave evidence in these proceedings can be said to be impartial.
In assessing evidence which relies upon the recollection of events which occurred many years ago, I have applied the approach of Martin CJ in Fazio v Fazio [2010] WASC 263 [51]. That is, I have placed significant weight upon contemporaneous documents and upon inferences that can be properly drawn from that evidence. Where it is possible to establish objective facts from that evidence, I have then assessed the oral testimony in light of the inherent probabilities of a particular version of events, in the context of the established objective facts.
I am not convinced that any witness in the Browne family gave evidence which he or she at this point in time deliberately knows to be false. I use the words at 'this point in time' in relation to Mr Browne. There are obvious problems with Mr Browne's evidence. It is clear to me that his memory is faulty in a number of respects. This could be caused by his advancing age or his partiality, or a combination of both. In these circumstances, I am reluctant to rely upon his evidence unless his evidence is corroborated by other evidence which I accept to be true and reliable or which common sense dictates must be true.
When Mr Browne gave evidence, he was resistant to accepting inferences contrary to his interests and was often belligerent. It was also clear that he is not a person who pays meticulous regard to important documents signed by him. On the morning of giving his evidence, Mr Browne signed his witness statements without checking and reading them, notwithstanding the significant discovery of a will on the previous day of the hearing that made a substantive difference to the content of at least one of the paragraphs of his first witness statement that had been tendered as his evidence‑in‑chief. Mr Browne's explanation was that he did not read this statement as he did not have time to do so (ts 397).
On the previous day of the trial, Mr Sevenson gave evidence in answer to a subpoena. He produced a number of documents in his possession, including notes of a meeting he had with Mr Browne on 13 November 2001 and a copy of a will made by Mr Browne on 30 June 1986.
In Mr Browne's witness statement of his evidence‑in‑chief dated 8 October 2017, Mr Browne stated that he was 100% positive that he did not make a will until 2005: exhibit 16 [40]. When asked about [40] of his witness statement, Mr Browne said that that statement was correct because he did not know he had a will in 1986 when he wrote his witness statement. Despite the fact that he reluctantly conceded that he made a will in 1986, after he had read the 1986 will the night before testifying, he would not concede that the statement that he made in [40] was incorrect.
Mr Browne has very little memory of historical events that are recorded in documents. When documents were put to him that were not detrimental to his case, that was proof of something that he did, he accepted the matters stated in the document irrespective of whether he had signed a particular document. For example, when a document of the Primary Industry Bank of Australia Ltd dated 30 April 1999 was put to him which recorded that it had approved an extension to the loan limit in the name of Menari Pty Ltd (as trustee for the Edward Browne Family Trust trading as E & M Browne and Sons) to $850,000, Mr Browne said that he did not remember agreeing to an extension of the partnership loan facility after the split of the partnership, yet he accepted that the document showed that there was an increase in the loan facility at that time.
At other times when documents were put to him which recorded that certain events had occurred or he had said particular things which were detrimental to his case, he said that, if he could not remember an event, it did not happen. An example of this arose out of the cross‑examination of Mr Browne about a diary note made by Steven in which Steven recorded that Mr Browne had attended a meeting on 11 October 2003. Steven is in the habit of keeping a diary of events at the end of each day. In a diary note made by Steven on that day he recorded that Mr Browne met with his accountant, Mr Crawford, and advisor, Mr Claude Mancini, together with Steven, and at that meeting there was a discussion about transferring Burracoorong to Steven through a testamentary trust. When asked about whether he recalled this meeting or any meeting attended by Steven, Mr Crawford and Mr Mancini, Mr Browne said he did not remember it and he had no memory of it. He then said, 'If I can't recall it, how can I admit to it'. The question was then put, 'I'm not asking you to admit it, I'm asking you do you admit that it might have happened, even though you can't recall it?' Mr Browne's answer was, 'To me, it didn't happen'. The question was then put, 'So if you don't remember something, you're[sic] position is it didn't happen?' Mr Browne's answer was, 'That's right': ts 477.
One of the issues in dispute between the parties was whether an incident had occurred shortly before Christmas in 2010 between Steven and Mr Browne when Mr Browne was helping Steven to cart the harvest on Burracoorong which resulted in Steven and Mr Browne falling out. Steven says this event occurred in December 2009. In a witness statement, Mr Browne said that he told Steven he was going to take Steven's load and then see if Peter needed any grain to be carted. Mr Browne says Steven said, 'No you won't', and physically prevented him from entering the truck to deliver Steven's grain which was already loaded. As a result of the incident, Mr Browne has not worked for Steven again, their relationship has never been the same and this incident is one of the matters which led to Mr Browne excluding Steven access to the infrastructure on Yargalain in 2013. The timing of this incident is important because in March 2010, Mr Browne agreed to guarantee an additional loan on Burracoorong of $400,000 to expire on 2 January 2018, which extended Steven and Shelley's loan facility with Rabobank to $1,125,000: exhibit A, 245 ‑ 257.
In cross‑examination, it was put to Mr Browne that Steven had examined his records and the log records (which indicate the identity of the drivers who carted grain) prior to Christmas 2009 and 2010 and these records indicate that the incident occurred in 2009. In response, Mr Browne said that Steven's lawyer had sent him a letter in which it was recorded that the incident occurred in 2010 and that is how 'he took it to have happened in 2010'. When it was put again to Mr Browne that Steven had subsequently checked the records and the records show that Mr Browne had not carried out any carting of grain for Steven in 2010 Mr Browne said that he did not accept that the incident happened in 2009. He then said, 'If that had happened in 2009, would I have allowed him [Steven] to borrow another $400,000 early 2010?' When copies of the delivery forms for December 2009 signed by Mr Browne and copies of the daily trip recording sheets for November and December 2010, which did not contain Mr Browne's signature, were put to him, Mr Browne demanded to see the originals. On the following day when Mr Browne resumed his evidence and was shown the original of the 2010 documents he reluctantly conceded that the incident with Steven happened in 2009, not 2010: ts 487, 505.
In a note of a family meeting of 12 March 1999 made by Mr Sevenson, one of the key issues was stated to be made by Mr Browne, was that the 'annuity to be split equally'. When asked about this statement in the note, Mr Browne emphatically said that he had never used the word 'annuity', however he accepted that the word could have been used (ts 450 ‑ 451). Mr Browne said on a number of occasions when giving evidence that the word 'annuity' was not a word used by him, it was a word used by Steven. However, when a Rabobank statement of E & M Browne dated 28 February 2013 was put to Mr Browne, he conceded that he had handwritten on the bank statement 'Steven annuity' next to an amount of $18,000: exhibit 20.
I generally found the evidence of Steven to be credible. Unlike Mr Browne, his memory was not revealed to be unreliable. I found in general he was an honest witness doing his best to recall events that occurred over many years. Yet, I have some reservations about Steven's recollections of events that occurred in the 1970s because of the passage of time.
I found Dale to be a credible witness. He did his best to recall events and answer questions put to him.
I found Shelley to be a credible witness. She made appropriate concessions as to matters that she was not involved in. However, the relevance of the most of her evidence is limited as she has left the running of the farming enterprise on Burracoorong and Moganmoganing to Steven.
I found Paul to generally be a reliable witness. However, his evidence was tailored, in that he now perceives the 1999 agreement to split the farming partnership to be an agreement that was unfavourable to his sisters. Two years after Paul began farming Yarrawindah and the Army Blocks, he asked Mr Browne if he would secure a mortgage against the Army Blocks and Mr Browne said no, that the Army Blocks were going to be left to his sisters when he and Mrs Browne died: exhibit 24, [46] ‑ [49]. When that occurred Paul was surprised and disgusted (ts 540). He said that at the time the agreement was made to split the family partnership it was his 'perception' that all of the land he had been allocated would be his, but that was a false assumption (ts 539).
I found Michael to be a credible witness. He gave his evidence in a forthright manner. His evidence is consistent with the contemporaneous documents leading up to the split of the family partnership.
I did not find Peter to be a reliable witness. His memory appears to be poor and his attention to detail is poor. For example, in his witness statement tendered as his evidence‑in‑chief he stated that he made an offer to Steven to sell his (Peter's half) of Moganmoganing for $1.6 million: exhibit 28, [73]. However, the offer made to Steven to purchase Moganmoganing (by Peter and Catherine) was in fact $1.4 million: exhibit B, 341 ‑ 347.

Representations made by Mr Browne prior to 1999

Steven's evidence is that in the late 1970s his father said to him on a number of occasions that Robert's or Swan 3259 (Burracoorong) would be his.
One of those occasions was when they were walking to the car after Mr Browne and Steven had left a meeting with Mr Browne's accountants in Perth.
Steven also said that he read a will made by Mr Browne in the 1970s that contained a specific gift leaving him Swan 3259 (Burracoorong). This evidence is objected to as it is said to be secondary evidence of a document. I am of the opinion this evidence is admissible not to prove the contents of a document, but to what Steven thought his father's testamentary intentions were at that time. However, I have given this evidence little weight. At that point in time Steven had not taken any action in reliance on any representations made to him about Burracoorong.
I accept the evidence given by Steven and Shelley that they would not have built their house on Burracoorong in 1987 unless Mr Browne had promised Steven that one day Burracoorong would be his. The records of the discussions at family meetings between 1995 and 1999 and an admission made by Mr Browne supports this finding of fact.
Steven and Shelley started building the house on Burracoorong in 1987. Payments were made for the construction of the house between February 1987 and November 1998. The house was paid for in part by Steven's entitlement from the partnership. Steven and Shelley say the remainder was paid from Shelley's savings. Mr Browne claims that he does not remember telling Steven and Shelley that if they build their house on Burracoorong it will be theirs. Yet he concedes that Steven took money out of the partnership to build the house but could not remember whether it was wages or drawings on the partnership. He said that he believed that Steven was entitled to do so but he does not remember the details. Nor does Mr Browne know anything about Shelley's alleged contribution to the cost of the house.
Whilst counsel for Mr Browne argued that there was no reliable evidence before the court that Steven paid for his house from his entitlements in partnership, and no documentary evidence to support such a finding of fact, I do not agree. Mr Browne concedes this to be the case. In any event, Mr Browne removed the partnership records from a sea container on Burracoorong and stored them on a property owned by Mr Browne at Bullsbrook. In 2006, Mr Browne became concerned that he did not have room to continue to store them so he instructed his daughter Anne to destroy the records.
Importantly, Mr Browne said when giving evidence that he always believed in his heart that Burracoorong was Steven and Shelley's house and he accepted that Burracoorong was a 'natural place' for Steven and Shelley to farm (ts 455).
For the reasons that follow, it is clear to me that from at least by the time Steven and Shelley built the house on Burracoorong, Steven and Shelley arranged their lives and Steven arranged his work and applied his resources upon the expectation that he would one day own Burracoorong. Furthermore, I am satisfied that Steven has incurred substantial financial and personal liabilities because of his expectation of owning Burracoorong.

The material matters discussed at the family meetings between members of the Browne family between 1995 and 1999

Michael prepared minutes of the family meetings that occurred in 1995 and 1996. The first meeting was held on 19 and 20 August 1995. At that time Michael was working as an accountant in Perth and was considering returning to work full‑time in the farming partnership. It is apparent from the minutes of the family meetings recorded by Michael in 1995 that the core issues discussed were succession planning in relation to the land, plant and equipment of the partnership, whether succession should be through a company or a trust, the role of Mrs Browne, cash payments to the four sisters who are referred to in the minutes as 'the girls' and the working terms and conditions of the current partnership arrangement.
Importantly, in the typed minutes recorded by Michael of meetings that occurred on 19 and 20 August 1995 and 19 and 20 April 1996, it is recorded who was present, and the length of the meetings. The minutes included a statement which indicates that the minutes were subsequently sent to each of the members of the partnership asking them to review and if necessary correct the minutes. The statement was:
Please review the minutes, edit/amend/add as necessary. I did not get to record everything, particularly the discussion I got involved in.
Mr and Mrs Browne, Steven, Paul, Michael and Peter attended first the meeting. Shelley also attended the first meeting for part of the time. When Michael gave evidence he said that no member of the family sought alterations or amendments to the minutes of the two meetings. When Paul gave evidence he agreed that Michael's minutes were a more reliable account of what occurred at that period of time rather than anyone's present recollection of what was said at those meetings. Peter was unable to say when he gave evidence whether Michael's notes fairly recorded the discussion at the family meetings.
Despite Mr Browne's denial that he had in place a will earlier than 2005 or that he discussed any of his wills with his sons, it is patently clear from Michael's minutes of the family meeting on 19 and 20 August 1995 that there was in existence a current will of Mr Browne and the terms of that will was discussed at that meeting. In the minutes of that family meeting a number of core issues were discussed including the topic 'Land how it is to be left to each of the boys (what mechanism)'. In the minutes Michael recorded under the heading 'Mum/Dad' the following statements or observations attributable to Mr and Mrs Browne:
Mum/Dad
1'land will not be divided until Mums/Dads death'
Mechanism for distribution still undecided, although currently via will (30% Steven, balance equally)
2'additional land purchases morally not Dads to distribute, however it is Dads belief he has that right'
Hence current Steven 3400 Michael 2000
View of allocation Paul 2300 Peter 2300
Under the heading 'General' the minutes state:
1'general agreement that the current amount of land will not meet everyone's long term views of a viable farm
2Paul/Michael/Peter agree Steven should receive a larger % for his contributions in the past
3need expert advice on the benefits of leaving land in a trust (Exhibit A, 3317)
When Mr Browne was asked about the minutes prepared by Michael of the meetings of 19 and 20 August 1995, Mr Browne accepted that from the beginning of the family discussions that there was a discussion about what mechanism would be used for the land and the plant and equipment to be left to each of the brothers.
Mr Browne was also asked about notes that were prepared for discussion at the first meeting which had been prepared by Michael and handed to each person to read. In particular, Mr Browne was asked about the following notes under the heading 'Land' which stated as follows:

Quantity		Partners at Purchase		Value ($500 per acre)
7,200		Dad/Mum		3,600,000
1,800		Dad/Mum/Steven/Paul		900,000
1,000		Dad/Mum/Steven/Peter		500,000
10,000		5,000,000
Current split as per Will (estimate	Years Spent off the Farm (Currently)
Steven	3,200		1,600,000		1
Paul	2,500		1,250,000		5
Michael	2,000		1,000,000		10
Peter	2,300		1,150,000		2

The current split is based on the fact Steven has spent the most time on the farm developing the assets. It is aimed at remunerating each of the boys, based on term/input into the farm to date

Method

Currently this is done via a [sic] Dads will

Look at other options like a Trust

ensures Land is kept for benefit of all remaining partners

Purchases

To form part of the total land package, in which Dad distributes to each of the boys.

Every boy member has an entitlement, even if not in the partnership

Sales

The remaining partnership members be given first option to purchase at 70% of the market value (exhibit A, 3304).

When asked about these notes, Mr Browne said that he did not give the figures recorded in the document to Michael. He also said that there was no will at that particular time and that as it had been drawn to his attention in these proceedings that he had made a will in 1986, the reference to a will in the notes must have been a reference to the 1986 will.
He said, however, that those figures do not reflect what is in the 1986 will. Plainly this contention by Mr Browne is not correct.
In cl 5 of the 1986 will, Mr Browne gave his right and title and interest to all of his lands used or capable of being used for farming pursuits to his sons, Steven, Paul, Michael and Peter as tenants in common in the following shares, namely, Steven, nine undivided 30th shares and to each of the other brothers, seven undivided 30th shares. The gift in cl 5 was expressed to be subject to the son's undertaking to permit Mrs Browne to reside during her lifetime in the family residence on the lands free of any rent, rates, taxes and charges and annual outgoings unless Mrs Browne did not wish to reside therein which case each of the brothers in proportion to their entitlement in the lands were required to purchase an alternative residence in a location in Western Australia of Mrs Browne's choice: exhibit 6.

September 7 - 9, 12 - 15, 19 - direction of 1,000 m boundary fence.
October 4 - 5 - constructed a laneway entrance to the sheds.

2017

January 30 - 31, February 1 - installed shade sails in three horse paddocks.
April 7 - 9, 12 - 15, 17 - 20, May 5, 8 - 17 - track chaining rocks and removed with Borne rock picker (total of 187 loads).
June 19 - August 7 - rock picking in crops (134 hours).

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BROWNE -v- BROWNE [No 2] [2017] WASC 375 (S)
CORAM:   SMITH AJ
HEARD:   ON THE PAPERS
DELIVERED          :   11 APRIL 2018
FILE NO/S:   CIV 2044 of 2017
BETWEEN:   STEVEN EDWARD BROWNE
Plaintiff
AND
EDWARD BROWNE
Defendant

Catchwords:

Practice and procedure - Application for indemnity costs - Calderbank offer - Not unreasonable to refuse offer - Claim for special costs orders - Legal Profession Act 2008 (WA) - Whether scale limit should be removed for particular items - No new principles - Turns on own facts

Legislation:

Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA), items 1(c), 7(b), 17, 20(a), 20(b), 20(d)
Legal Profession Act 2008 (WA), s 280(2)

Result:

Special costs order made

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Hotchkin Hanly Lawyers
Defendant	:	Dwyer Durack

Case(s) referred to in decision(s):

Browne v Browne [No 2] [2017] WASC 375
Calderbank v Calderbank [1975] 3 All ER 333
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S)
Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S)
Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137
Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S)
Mentha As Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S)
Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2)
Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S)
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S)

SMITH AJ:

The facts of the substantive matter that are relevant to the application for indemnity costs and a special costs order

The plaintiff, Steven Browne, is one of four sons of the defendant, Mr Browne. Mr Browne is the registered proprietor of a number of farming properties which Steven and his brothers have solely occupied to conduct their own farming operations. The property occupied by Steven is Burracoorong.
Until early 1999, Steven had been a partner in a farming partnership with Mr Browne, Mrs Browne and his brothers.
Steven's claim was that at various times from 1975, Mr Browne promised him that he would gift Burracoorong to him before, or upon the death of Mr Browne or upon the death of Steven's mother, Mrs Browne, and Mr Browne thereby induced an assumption to that effect.
In early 1999, Steven, Mr and Mrs Browne and Steven's three brothers entered into an agreement to split the farming partnership. It was not in dispute that part of the agreement was that Steven would be entitled to conduct his own farming business on Burracoorong (which initially excluded one paddock), Mr and Mrs Browne would leave the partnership, and Steven would pay $16,000 per annum to Mr Browne (being his contribution to an amount the brothers agreed to pay to their parents).
By 1999, Steven claimed that Mr Browne had induced an assumption by him (Steven) that:
(a)Mr Browne would gift the land that Steven farmed, namely Burracoorong, to Steven;
(b)Steven would farm Burracoorong, henceforth independently, at his own expense;
(c)Mr Browne would support Steven's farming by allowing Steven access to infrastructure on Yargalain (another of Mr Browne's farming properties which was farmed by his brother Peter); and
(d)by facilitating Steven's borrowing by permitting the use of the partnership's existing funding facility.

Until early 2015, Mr Browne facilitated Steven's improvements to Burracoorong and made Burracoorong available to Steven and his wife as security for borrowings for their farming operations.
By mid‑2013, the relationship between Steven and Mr Browne had begun to break down. In August 2013, Mr Browne demanded Steven sign a lease for Burracoorong for a term of 10 years with an option for a further term of 10 years, a base rent of $34,000 per annum with a reservation to Mr Browne of a right to sell.
On 12 August 2013, Mr Browne excluded Steven from access to the farming infrastructure on Yargalain. On 12 November 2013, Mr Browne informed Steven's bankers, Rabobank, that he required the bank to remove Steven's and his wife's mortgage over Burracoorong. By 20 November 2013, Mr Browne withdrew his instructions to Rabobank and the bank was informed Mr Browne would continue to honour his commitments under the current funding arrangements.
As a result of being denied access to the infrastructure on Yargalain, Steven constructed a fertiliser shed and a shearing shed and yards on Burracoorong. Steven's evidence was that Mr Browne had signed an application for planning approval for the development and construction work on 12 December 2013 and for the shearing shed on 20 February 2015.[1]
[1] The signing of these documents by Mr Browne were pleaded by amendments to the statement of claim after the Calderbank offer was made and rejected. Mr Browne claimed his signature on the documents was forged.
On or about 1 June 2017, Mr Browne refused to acknowledge his promise that he would give Burracoorong to Steven and refused to continue to guarantee Steven's borrowings (beyond the expiry of the current funding arrangement on 2 January 2018).
On or about 4 August 2017, Mr Browne demanded an increase in annuity (or rent) from Steven of $61,000 per year, commencing on 1 July 2017 and reserved his right to evict Steven from Burracoorong if Steven did not pay the sum of $64,000 by 11 August 2017.
On 4 August 2017, Mr Browne executed a will in which the conditions that attached to Steven's entitlement to Burracoorong, via testamentary trust, were inconsistent with the promise and were illusory because Steven's entitlement to Burracoorong was expressly irrevocable and the will required the payment of an amount that Steven was unable to pay.[2]
[2] The will was pleaded by amendment to the statement of claim after the Calderbank offer was made and rejected.
Steven claimed his reliance on the induced assumptions was to his detriment and sought relief in equity in a claim in proprietary estoppel created by encouragement by the owner of land as to the future acquisition of property.
Mr Browne pleaded that the asserted promise was vague and that in any event, the promise was executory and no estoppel would lie in aid of an executory promise.
Mr Browne's answer to Steven's case was that it was a term of the agreement reached with Steven (and the brothers in 1999) that, among other conditions:
(a)each of the brothers would use the land allocated to them;
(b)Mr Browne retained ownership of his land absolutely;
(c)Mr Browne was entitled to vary the allocation of the land at his absolute discretion;
(d)for as long as the brothers used the land they would each pay an amount to Mr and Mrs Browne until both of them died. The amount was to be determined by Mr and Mrs Browne at their absolute discretion, relative to their needs and obligations, and $16,000 per annum were initial amounts;
(e)Steven was given the right to access across Yargalain provided he equally bore the costs of electricity and maintenance during shearing seasons with Peter;
(f)Mr Browne agreed to continue to guarantee the existing debts of the partnership for the term of the guarantee and could, at his absolute discretion, agree to guarantee further loans; and
(g)provided the brothers individually complied with their obligations pursuant to the agreement, both Mr and Mrs Browne would make a will which provided that, upon the death of both of them, such of the brothers who had complied with the agreement would be given the land of which they had used.

Mr Browne counterclaimed that pursuant to the income discretion clause of the 1999 Agreement, Steven owed Mr Browne increased payments of $34,000 per annum, retrospectively from 1 July 2013 and $61,000 per annum from 1 July 2017.
In the alternative, Mr Browne claimed Steven owed him reasonable rent as a tenant at sufferance at the market rate of rent payable by lease holding farmers in the vicinity of Burracoorong.
In my reasons for decision in Browne v Browne [No 2][3] I found the evidence given by Mr Browne generally unreliable. In particular, I found his memory of events to be unreliable which could be caused by his advancing age or his partiality. I also found that he was not a person who paid meticulous regard to important documents signed by him.
[3] Browne v Browne [No 2] [2017] WASC 375.
Although I did not accept that Mr Browne agreed to gift Burracoorong to Steven before his death, I found it was agreed by Mr Browne that when the partnership split in 1999, Steven was to be gifted Burracoorong in Mr Browne's will and that this promise was made as an irrevocable promise, subject only to annual payments to Mr Browne or to Mrs Browne if Mr Browne predeceased her. I also found that:
(a)Steven had relied upon the promise;
(b)Steven and his wife had relied upon a representation by Mr Browne that Mr Browne would provide ongoing support (during his lifetime) by providing access to infrastructure on Yargalain and funding support to Steven and his wife's farming enterprise;
(c)Mr Browne had departed from the promise and representations to Steven; and
(d)if Mr Browne is allowed to depart from the promises and expectations, Steven and his wife would substantially suffer. They would likely lose their home and it appeared that they would be unable to continue to farm Burracoorong.

I also found the annual sum of $16,000 (subsequently increased to $18,000) to be paid by Steven, was an amount that was fixed as income to cover the living expenses for Mr and Mrs Browne in their retirement.
In these circumstances, the annual payments could not be characterised as rent and as such Mr Browne's counterclaim failed.
Following the publishing of reasons in Browne v Browne [No 2][4] I made the following orders in favour of Steven:
[4] Browne v Browne [No 2] [2017] WASC 375.
(a)A declaration that Mr Browne holds his legal interest in the property known as Burracoorong on trust for Steven.
(b)On the condition that Steven pay Mr Browne the sum of $64,000, Mr Browne is to forthwith deliver up a signed transfer of Burracoorong to Steven and will do all things reasonably necessary on his part to effect that transfer.
(c)Steven is to pay Mr Browne or if Mr Browne is deceased, Mrs Browne, no later than 31 January of each year a lump sum of $34,000, representing 25% of Mr Browne's and Mrs Browne's reasonable and quantifiable annual living expenses for each financial year commencing 1 July 2017.
I also made orders dismissing the counterclaim.

Steven's claim for costs

There is no dispute that Mr Browne should pay Steven's costs of the action. The question is whether those costs should be taxed on an indemnity or a party‑party basis. If the costs are to be taxed on a party‑party basis, Steven seeks costs of the action without reference to the limits provided in items 1(c), 7(b), 17 and 20(a), (b), and (d) of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) (2016 Determination) pursuant to s 280(2) of the Legal Profession Act 2008 (WA).

Application for indemnity costs

Steven made a number of offers to settle his dispute with his father, Mr Browne, prior to the commencement of the proceedings and a Calderbank offer[5] was made shortly before the trial of the action.
[5] Calderbank v Calderbank [1975] 3 All ER 333.
Steven submits as his primary position that the court should exercise its discretion and order that Mr Browne indemnify him for his reasonably incurred costs of the action. Alternatively, Steven seeks an order that the plaintiff's costs should be taxed without reference to the scale, until the plaintiff's offer of 24 October 2017 was rejected and thereafter, on an indemnity basis.
The relevant principles which govern the exercise of the court's discretion in the context of a Calderbank offer were set out by Buss JA in Ford Motor Company of Australia Ltd v Lo Presti.[6] In Eccles v Koolan Iron Ore Pty Ltd[7] Le Miere J summarised the principles explained by Buss JA in the following way:[8]
[6] Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [16] ‑ [32] (Wheeler JA agreeing).
[7] Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S).
[8] Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S) [9]
(1)a Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable;
(2)all of the relevant facts and circumstances must be considered in determining whether a party's rejection of a Calderbank offer was unreasonable;
(3)the mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable;
(4)whether conduct is reasonable or unreasonable always involves matters of judgement and impression;
(5)it is not possible nor desirable to enumerate exhaustively all circumstances which must be taken into account, in a particular case, in deciding whether the rejection of a Calderbank offer was unreasonable, but, ordinarily, regard should be had to, at least, the following:
(a)the stage of the proceeding in which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offeree's prospects of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed; and
(f)whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it;

(6)the party who makes a Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in his or her favour; and
(7)the standard to be applied in awarding indemnity costs should not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis absent some blameworthy conduct on its part - a test of unreasonableness should not be upheld on other than clear grounds.

The claim for indemnity costs

In August 2013, Steven received a letter from Mr Browne's solicitors attaching a draft lease to sign. The draft lease contained among other conditions, a base rent of $34,000 per annum payable by annual instalments of $17,000 each on 1 July and 1 January during the term of the lease, which was said to commence on 1 July 2013.
In February 2014, Steven by his solicitors sent two letters attempting to settle the dispute concerning payments to Mr Browne and Steven's tenure on Burracoorong.
The first letter is dated 7 February 2014 and was tendered into evidence in the proceedings at first instance.[9] It communicated the willingness of Steven to compromise to reach agreement which, Steven says, if accepted would have avoided the need for the proceedings.
[9] Exhibit 18.
In a second letter dated 19 February 2014 Steven offered to settle the dispute between him and Mr Browne as follows:
(a)Steven and his wife would pay Mr Browne $34,000 per year, payable in January;
(b)Mr Browne would continue to guarantee the loan facility that Steven and his wife have with Rabobank to $1,050,000 (for the life of the loan and as extended for any new loan for the same amount from time to time), and agrees to maintain a mortgage over Burracoorong; and
(c)Mr Browne will formally acknowledge that Burracoorong would be left to Steven, consistent with the arrangement reached in 1998 (provided that annual payments to Mr Browne are made and that Steven and his wife can continue to farm Burracoorong in a commercially viable way).

Steven's offer imposed no time limit for acceptance.
This offer was rejected.
It is contended on behalf of Steven that the rejection of this offer by Mr Browne was not reasonable in the circumstances because Steven's offer provided Mr Browne with the substance of what he was seeking (ie security of payment, security of ensuring that Steven must not get into financial difficulty), without the over‑riding of Steven's existing rights that signing a lease would have involved.
Steven commenced these proceedings by a writ of summons filed in the court on 26 June 2017.
By letter dated 24 October 2017, Steven made an offer to settle the matter as follows:
(a)Mr Browne retain the ownership of Burracoorong, and be paid $34,000 for the 2017 ‑ 2018 financial year with annual CPI increases; or
(b)Burracoorong be transferred to Steven but with an obligation imposed on Steven to pay the sum of $500,000 to Mr Browne in instalments.

It was also a condition of each alternative offer that Steven would agree to an order that the proceedings be dismissed and to an order that he pay Mr Browne's taxed costs of the proceedings and that there would otherwise be no order as to costs.
Steven's offer remained open for acceptance by Mr Browne until close of business on 27 October 2017. It was made as a Calderbank offer. In the letter it was stated that in the event that Mr Browne rejects the offer and Steven achieves the same or a better outcome, Steven will rely upon the letter containing the offers in support of an application that Mr Browne pay his costs on an indemnity basis, from the date of the offer.
The 2017 October offer was expressed to be open for a short time. However, the parties had attended mediation and concluded negotiations in mid‑September 2017. The offer was made at an advanced stage of the proceedings (13 days before the commencement of trial). The parties had already filed their evidence‑in‑chief. At that time, Mr Browne was in possession of the evidence‑in‑chief to be called by Steven at the hearing to assess that evidence against his claims and his defences.
The 2017 October offer involved significant compromise on Steven's behalf. The offer involved no material compromise from Mr Browne because:
(a)he would receive a greater financial return than what he had been seeking from Steven, and was seeking from him in his counterclaim by way of 'rent';
(b)he had not been paying any costs associated with owning the property and that would remain the case; and
(c)Steven would be the owner, which on the evidence as to the 1999 arrangements was what Mr Browne had originally intended (and indeed up until 2013 was what he still unequivocally intended).

I also accept that the 2017 October offer set out in clear and unambiguous terms with reference to Mr Browne's own evidence as to why Mr Browne would not be successful in his defence and the prosecution of his counterclaim.
I am also satisfied that it is clear that the outcome for Mr Browne at the trial was significantly less advantageous to him than either of the alternatives put in the 2017 October offer.
The sole issue for determination is whether the rejection of the 2017 October offer by Mr Browne, at the time the offer was made, was in the circumstances unreasonable.

Immediately after the offer expired, Steven sought to amend his statement of claim to raise two new issues which, on the facts that were ultimately found in the substantive hearing of Steven's claim, strengthened Steven's case.
On 31 October 2017, an order was made allowing Steven to file a re‑amended statement of claim by 1 November 2017. Amendments were also sought by Mr Browne to his counterclaim. After counsel for the parties conferred, Steven did not oppose the order sought by Mr Browne.
The first amendment to the statement of claim that is material to the claim for indemnity costs is a pleading that on 12 December 2013 and 20 February 2015 Mr Browne facilitated development and construction work on Burracoorong by signing development applications submitted to the Shire of Chittering.
Mr Browne claimed the signature on the documents in question were forged.
I allowed the amendments after finding that as Mr Browne had notice of the issue since 5 October 2017, Mr Browne could not be said to be taken by surprise by the amendment.[10]
[10] Browne v Browne [No 2] [2017] WASC 375 [46] ‑ [47].
The second relevant amendment to the statement of claim related to the terms of the will executed by Mr Browne on 4 August 2017 in which Steven's entitlement to Burracoorong, via testamentary trust, was expressly revocable and subject to a number of conditions which included payments to his sisters totalling $1.2 million.[11] I allowed the amendments as they raised discrete issues which related solely to the terms of the will, and the disposition of those amendments turned on only the express terms of the document and did not raise an issue going to the circumstances of the making of the will.
[11] Browne v Browne[No 2] [2017] WASC 375 [41] ‑ [42].
The terms of this will were found in the trial to be evidence that Mr Browne had resiled from the expectations that he had induced by his promises.[12]
[12] Browne v Browne[No 2] [2017] WASC 375 [275(f)], [275(g)].
For the purposes of determining whether the rejection of the October 2017 offer was unreasonable, it is relevant to consider the matters pleaded, the nature of the evidence and the manner in which the trial was conducted.
The trial was expedited and was heard for five days from 6 until 10 November 2017 (less than six months after the writ was filed in the court).
Steven and Mr Browne's case were substantially founded upon evidence of communications between each other and the other brothers.
Steven's case also relied upon documents which recorded matters discussed at family meetings including at least one contemporaneous record Steven made of a conversation between himself and Mr Browne.
Whilst there were contemporaneous records of discussions at family meetings that led to the 1999 agreement there was no document in existence that clearly set out the terms of the 1999 agreement. However, there were matters recorded in the notes of family meetings and letters recording discussions between family members that supported Steven's case.
Whilst it appeared that Steven had a strong case in the event that his version of events was to be accepted, prior to trial it was not certain that much of Mr Browne's evidence would not be accepted. I did not find Mr Browne to be a dishonest witness but I rejected critical aspects of his evidence.
At the time the 2017 October offer was made it was anticipated by Mr Browne that expert evidence may bolster his claim that Steven had forged the 2013 and 2015 planning documents (to build infrastructure on Burracoorong after access was denied to Yargalain). An expert subsequently examined the documents after Mr Browne had rejected the offer. It only emerged at the trial that the expert evidence did not support Mr Browne's evidence and Mr Browne's memory was found to be faulty.
Disbelief of a party's witnesses, or rejection of the evidence of a party him or herself, does not as a matter of principle provide a sufficient basis for the award of indemnity costs.[13]
[13] Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S) [13].
The power to award indemnity costs is exceptional in character. There must be some special or unusual feature to justify departure from the ordinary practice of awarding party‑party costs.[14]
[14] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S) [109].
In circumstances where:
(a)the acceptance of Steven's case turned to a large degree on the assessment of his credit as a witness and rejection of Mr Browne's case substantially turned upon grounds of his credibility; and
(b)material amendments were made to the statement of claim after the 2017 October offer was rejected;

I am not satisfied that the rejection of the October 2017 offer was unreasonable.
For these reasons, I am not satisfied that the court should make an award of indemnity costs in favour of Steven.

Is the discretion to make a special costs order enlivened and should an order be made?

Section 280(2) of the Legal Profession Act provides that a court may make a special costs order where it is of the opinion that 'the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter'.
The court must form an opinion about two matters before it can make an order under s 280(2). First, it must form an opinion that the costs allowed by the applicable legal costs determination are inadequate and second, it must form an opinion that the amount allowed is inadequate because of the 'unusual difficulty, complexity or importance of the matter'.
If those preconditions are met then the court may do all or any of the following:
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in determination;
(c)remove limits on costs fixed in the determination; and
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.[15]
[15] Legal Profession Act 2008 (WA) s 280(2).

An assessment of whether an amount of costs allowed in respect of a matter under a legal costs determination is inadequate is not to be determined by the court in a precise way. Martin CJ in Mentha v Hughes explained:[16]
[16] Mentha As Receiver and Manager of Westgem Investments Pty Ltd (in liq) v Hughes as Liquidator of Westgem Investments Pty Ltd (in liq) [2014] WASC 478 (S) [4] ‑ [5].
The principles governing the exercise of the powers conferred upon the court by s 280(2) of the Act are well established. The discretion conferred by the section can (but need not) be exercised if the court is of the opinion first that the amount of costs allowable in respect of a matter the subject of a cost determination is inadequate, in the sense that a limit or other amount imposed by the determination would preclude the presentation of a fairly arguable case for the allowance of costs at a greater amount and second, that the inadequacy arises because of the unusual difficulty, complexity or importance of the matter.
When a party moves for an order pursuant to s 280(2) of the Act, the questions arising under the section are addressed as matters of impression rather than science or mathematical precision. In some cases it will be necessary to adduce evidence to enable the formation of the requisite opinion. However, in other cases, a court might be able to form the necessary opinion from its knowledge of the case and its circumstances. Moreover, it must be remembered that when an order is sought removing limits on costs fixed in an applicable determination pursuant to s 280(2)(c), the order made will do no more than that. Accordingly, the court considering the application for such an order need go no further than determine whether there is a fairly arguable case for the allowance of costs at an amount greater than the amount allowable under the relevant determination - it is for the taxing officer to consider the necessity for the work that was done and the reasonableness of the remuneration claimed.

In considering the second step, the court must conclude that the inadequacy arises because of the unusual difficulty, complexity or importance of the matter. It is established that the word 'unusual' qualifies only the term 'difficulty' and not the terms 'complexity or importance'.[17] Importance is understood to only encompass importance to the parties and not importance to the public or a sector of the public.[18]
[17] Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 (S) (the court); applied in Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S) [9] (Pritchard J).
[18] Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [17] ‑ [19] (Martin CJ).
In Pourzand v Telstra Corporation Ltd[19] and The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2][20] Edelman J said that the question of 'unusual difficulty, complexity or importance' should be asked separately in relation to each item for which the lifting or removal of the scale is sought. This approach was rejected by Martin CJ in Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd.[21] His Honour found that the expression should be construed as meaning the issue, dispute or controversy in respect of which legal services were provided and which fall within the ambit of a costs determination.[22]
[19] Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) [24] ‑ [25].
[20] The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S) [6].
[21] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S).
[22] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [7].
The reasoning of Martin CJ in Electricity Generation v Woodside was found to be persuasive and applied by Beech J in Eclipse Resources Pty Ltd v The State of Western Australia [No 2].[23] This approach was also applied by Pritchard J in Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd.[24] In my respectful view, the reasoning of Martin CJ in Electricity Generation v Woodside is persuasive and I propose to adopt his Honour's approach.
[23] Eclipse Resources Pty Ltd v The State of Western Australia [No 2] [2015] WASC 137 [35].
[24] Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242 (S) [10].
However, this approach does not mean that an examination of individual items of the costs determination should not be considered when determining whether costs allowable in respect of the work done is inadequate. In Electricity Generation v Woodside Martin CJ explained:[25]
[25] Electricity Generation and Retail Corporation Trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [12].
The question which must be addressed either in respect of individual items or a costs determination as a whole is whether the costs allowable in respect of the work done are inadequate because of the particular characteristic or characteristics of the 'matter' which has or have enlivened the jurisdiction of the court - that is, unusual difficulty, complexity or importance.

Whether the amounts allowed under the relevant items of the scale are inadequate

Phillip Bruce Dobson, solicitor for Steven, deposes in an affidavit sworn on 19 February 2018 that in about March 2017, after it appeared to him that it would be necessary for Steven to commence proceedings, he sought instructions from Steven to engage senior counsel. Mr Dobson's opinion that senior counsel should be engaged was premised on the following:
(a)the importance of the matter to Steven, given that there was a potential for him to no longer be able to continue to live and farm on Burracoorong;
(b)Mr Dobson's view was that the matter was sufficiently difficult to warrant the engagement of senior counsel, given the equitable nature of the claim and the facts giving rise to the plaintiff's claim traversed an extended period of time involving conversations and acts of reliance from a relatively long time ago, and did not rely on any formal written agreement;
(c)Mr Dobson's view that the proposed senior counsel, Mr M Solomon SC, had experience in equitable claims of this nature; and
(d)Mr Dobson's view based on his experience of Mr Solomon's work at previous mediations that he (Mr Solomon) would take a pragmatic and proactive approach in attempting to settle the matter, which he (Mr Dobson) considered to be particularly important given that the dispute involved members of the same family.

Mr Dobson also deposes that:
(a)after mediation had occurred on 24 August 2017 the parties continued to negotiate settlement of the dispute until about mid‑September. The negotiations of the parties (of which the court was informed) resulted in the parties agreeing to defer the preparation of the matter for trial, by extending the trial preparation milestones in the hope that the matter might settle and the parties be spared the costs of preparing for trial;
(b)the consequence of the parties deferring the trial preparation milestones was that post‑mediation settlement discussions ceased, and there was less time to prepare the matter for trial (a trial which had already been listed on an expedited basis);
(c)as a result of being given a very short time available to prepare the matter for trial it became necessary to engage junior counsel to assist; and
(d)a considerable amount of work was necessary to be undertaken to prepare the matter for trial in a very short period of time and that without the assistance of junior counsel, Steven would not have been able to effectively prepare his case for trial as effectively as he did.

From these circumstances, Steven makes a claim for a special costs order on the following grounds:
(a)Steven's case disclosed a complex and lengthy factual background giving rise to Steven's claim against Mr Browne together with complex considerations of the appropriate relief to be granted by the court in the very particular circumstances of the arrangements made between Mr Browne and Steven;
(b)the matter involved unusual difficulty or complexity that might ordinarily not be expected in the trial of this nature because of the extensive time period covered by the litigation (about which evidence was required to be gathered and witness statements prepared) and because of the truncated timeframe for the preparation of the matter for trial;
(c)because of Mr Browne's denials or non‑admissions in his defence, the preparation of Steven's witness statement and his case involved analysis of many historical financial documents, spanning 1991 to 2017 to prove partnership borrowings, expenditure on the construction and maintenance of his house and on infrastructure built on Burracoorong;
(d)preparation for trial also involved the collation of evidence derived from diary entries spanning some 18 years in order to prove that Steven undertook significant development work on Burracoorong;
(e)these circumstances resulted in a particularly large trial bundle containing more than 4,000 pages with documents traversing a 43 year period from 1974 to 2017; and
(f)the expedited nature of the claim meant that Steven prepared lengthy opening submissions filed prior to the trial to save time in what would otherwise have necessitated lengthy oral opening submissions by senior counsel. Similarly, senior counsel's oral closing submissions were able to be truncated by the provision to the court of comprehensive closing submissions in writing.

Against this background, Steven claims that the scale for item 1(c) of the 2016 Determination which provides for an amount of $4,840 is inadequate. In an affidavit of Lewis James Whitehurst sworn on 19 February 2018 he attaches a draft bill of costs which estimates costs of settling the statement of claim, not including either senior or junior counsel's fees for settling, of $8,996.10.
Item 7(b) of the 2016 Determination provides for an amount of $4,840 for discovery. This amount is also said to be inadequate. The affidavit of Steven sworn on 28 September 2017 verifying the discovered list of documents shows that the discovery was large (more than 40 lever arch volumes) and involved documents covering an expansive period of time and included diaries, financial diaries, invoices and a large number of business records. The scope of discovery given arises directly from Steven's claim and the fact that the defence pleaded by Mr Browne puts most of the matters in dispute. The draft bill of costs attached to Mr Whitehurst's affidavit estimates a cost giving discovery of documents of $13,612.50.
Steven also claims that the preparation of case and fees on brief items in the scale are inadequate:
(a)Item 17 of the 2016 Determination provides for 120 hours and an amount of $58,000.80 for preparation of case. The draft bill discloses costs of $107,411.93, not including work reasonably and necessarily undertaken for commencement of proceedings which is permitted by the scale;
(b)Item 20(b) of the 2016 Determination provides for an amount of $30,690 for senior counsel's fee on brief, including trial preparation and submissions. The draft bill discloses costs of $115,690;
(c)Item 20(a) of the 2016 Determination provides for an amount of $17,820 for counsel's fee on brief, including trial preparation and submissions. The draft bill discloses costs of $60,020.40; and
(d)Item 20(d) of the 2016 Determination provides for $6,820 per day for the second and each successive day of the hearing for senior counsel. Senior counsel's daily fees were $7,800 plus GST.

Taking into account the court's impression of the case, I am satisfied that its unusual factual and legal complexity required an extensive volume of work necessary for the preparation for trial. I am also satisfied that the matter was of significant importance to the parties. When regard is had to these matters, it is open to infer that there is a fairly arguable case that a taxing officer might properly allow costs, for senior and junior counsel for settling the statement of claim, the engagement of senior and junior counsel for the trial, and discovery, in amounts greater than the amounts allowable under the 2016 Determination.
However, it is properly the task of the taxing officer to assess whether or not to allow all of the costs charged for the legal work covered by each of the items the subject of order.
Given the circumstances outlined on behalf of Steven, I am satisfied that the limits provided in items 1(c), 7(b), 17, 20(a), 20(b) and 20(d) of the 2016 Determination are inadequate and I am persuaded that the scale limits on these items should be lifted.

Conclusion

For these reasons, I will make an order pursuant to s 280(2) of the Legal Profession Act that Mr Browne pay Steven's costs of the action on a party‑party basis without reference to any of the limits provided in items 1(c), 7(b), 17, 20(a), 20(b), and 20(d) of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO SMITH AJ
11 APRIL 2018